SUBVERSION OF DUE PROCESS AND INSUFFICIENCY OF INQUIRY IN THE INVESTIGATION INTO THE DEATH OF DR DAVID KELLY

When Lord Hutton reported on 28 January 2004, many said "whitewash”. The Hutton Report was indeed a "whitewash", not so much because Lord Hutton wrongly found the BBC and not the Government responsible for Dr Kelly's "suicide" but much more importantly because Lord Hutton failed adequately to address the cause of death itself and the manner of death. The invocation by Lord Falconer, in his role as Lord Chancellor, of Section 17a of the 1988 Coroners Act to replace the statutory inquest by a non-statutory ad hoc judicial inquiry was highly irregular, as was the Coroner’s decision not to re-open the inquest following Hutton’s report. Not only did Lord Falconer, in his role as Minister for Constitutional Affairs, commission the Hutton Inquiry and determine its very narrow remit but he also decided, in his role as Lord Chancellor, that it would be an adequate replacement for a statutory inquest, when it was clearly no such thing. Given all this meddling with due process of the law it is perhaps not surprising that the death itself was not properly investigated.

Thus, not only was the form of inquiry inappropriate but the inquiry itself was clearly insufficient. There can be little doubt now that Lord Hutton presided over a blatant insufficiency of inquiry and the evidence to support that view is overwhelming. Some of that evidence, but for practical reasons not all, has been presented to Dominic Grieve QC, the present Attorney General.

Lord Hutton's finding of suicide is clearly unsafe and may, especially given the extraordinary context of Dr Kelly's death, represent one of the gravest miscarriages of justice to occur in this country. Many people in our country have known to a greater or lesser degree that that was the case but it was left to a few doctors, and latterly one journalist, to pick up the pieces of a huge jigsaw puzzle and to assemble a picture clear enough to present to the Attorney General. The doctors are requesting that an inquest be ordered through their lawyers, Frances Swaine and Merry Varney of the London law firm Leigh Day & Co. and Dr Michael Powers QC, in the form of a formal application to the Attorney General for his "fiat" to apply to the High Court to order an inquest as allowed under Section 13 of the 1988 Coroners Act.

Under Section 13 there are six reasons why the Attorney General may grant such "fiat". These are:

1) insufficiency of inquiry

2) irregularity of proceedings

3) rejection of evidence

4) new facts or evidence

5) fraud (in this context deception)

6) refusal or neglect to hold an inquest when one ought to be held

The doctors have provided abundant evidence to satisfy all six of these reasons; the Attorney General needs evidence of only one reason to grant his "fiat".

Further, the Attorney General is not required to satisfy himself that the verdict of suicide would change, only that it might change.

Accordingly, in September 2010, Leigh Day & Co. delivered a 34 page legal document called the Memorial to the Attorney General. On 28 February 2011, an Addendum to the Memorial was also provided to and at the request of the Attorney General. Both documents may be viewed in full on the BBC Online website. The doctors and Leigh Day & Co. have had sight of many other submissions to the Attorney General. It seems to the doctors and their lawyers that the case for an inquest is unanswerable.

It is surely in the public interest, and in the interests of justice, that an inquest into this death now takes place. The laws of this country, and indeed of Europe, require that the death of any British citizen dying in the manner in which Dr David Kelly is said to have died is investigated at an inquest, at which the Coroner possesses statutory powers. These include the power to hear evidence under oath, the power to subpoena witnesses, the power to have witnesses aggressively cross-examined and the power to call a jury. Lord Hutton possessed none of these powers, but the public was led to believe that Lord Hutton was better equipped to investigate Dr Kelly's death than was the Coroner. Further, Lord Hutton heard medical evidence for just one half of one day out of twenty four days of evidence, and found that Dr Kelly had committed suicide; no coroner in the land would have reached a suicide verdict on the evidence which Lord Hutton heard. The level of proof required for a coroner to reach a verdict of suicide is very high, since a suicide verdict closes the case for ever and automatically stops any murder investigation, in addition to permanently smearing the deceased (when he can no longer argue back) and his family. The Coroner is required to hear evidence which constitutes proof beyond reasonable doubt that the deceased killed himself and that he intended to kill himself, before he may return a verdict of suicide. Lord Hutton did not hear evidence which came near to satisfying that test.

We write to you asking that you endorse the request that an inquest be ordered. You will be aware that this important death, especially in the context in which it occurred, and the long subsequent fight for an inquest has been observed with mounting interest worldwide. Many will regard the response to the request for an inquest as a litmus test as to the good intentions and credibility of your government.

It is unfortunate that your government inherited this case from the preceding three governments, all of which did all they could to stop the necessary inquest. But, now surely is the time to begin the attempt to restore the tarnished reputation of our country around the world by holding a full, frank and fearless inquest into Dr David Kelly's death, so that “the truth, pure and simple”, of what happened can finally be established “however complex, painful or unacceptable to whomsoever that truth may be” (Christopher Clarke QC, in his opening statement as Leading Counsel to the Saville “Bloody Sunday” Inquiry).

If an inquest is denied, despite all the evidence carefully provided to the Attorney General, there is a real and grave risk that your government will be seen as continuing, and being complicit in, an enormous conspiracy to pervert the course of justice.

Further, any “no” decision will be vigorously contested in the courts via judicial review by the doctors’ lawyers.

Finally, while the wishes of the family may be taken into account by the Coroner as to whether or not an inquest should be held, those wishes are not determinative in law. The Coroner's primary duty is to the deceased, not to the family of the deceased. Similarly, the Attorney General's primary duty, under Section 13 of the 1988 Coroners Act, is to the deceased, not to the family of the deceased. The Coroner speaks for the dead to protect the living.

This letter, addressed to you, is an open letter and it will be made available to the Press Association for onward publication.

Wednesday, March 02, 2011

Doctors' solicitor makes final submission

Final submissions made to AG in Kelly inquest case

02 March 2011

Frances Swaine, Partner and Head of the human rights department at Leigh Day, assisted by Merry Varney, solicitor in the human rights department, act on behalf of the group of doctors seeking the Attorney General’s authorisation (known as a fiat) for the group to approach the High Court to seek a full inquest into the death of Dr Kelly in July 2003.

The Attorney General invited the group of doctors to bring to his attention any further matters supporting their call for a new and full Inquest into the death following the medical submissions made by the doctors in a Memorial (the document setting out the basis on which the Attorney General’s fiat is sought) in September 2010, and the subsequent disclosure by the Ministry of Justice of the post mortem and toxicology reports.

Although our clients sought access to the post mortem and toxicology reports, both Leigh Day & our clients did not support the public disclosure of the reports in the manner that occurred.

The Addendum

An Addendum to the Memorial has now been submitted to the Attorney General in line with his invitation, highlighting many further concerns arising from the recent disclosure of the post mortem and toxicology reports, as well as setting out numerous questions and issues that remain unanswered and unaddressed by the Hutton Inquiry and that would properly be the concern of any Coroner investigating the circumstances surrounding the death of Dr Kelly.

These further submissions focused inter alia on the following:

•The death certificate does not give the time nor the place of death (normally fundamental to the end of a Coroner’s inquest)

•Discrepancies between the post mortem report referring to an extended pool of blood by the body noted by the pathologist, Dr Hunt, yet not mentioned by any other attendees of the Hutton Inquiry, including those who spent time in the vicinity of the body

•The absence of any measurements taken regarding the amount of blood that existed outside the body, which is usually standard when investigating a suspicious death and necessary to report conclusively on whether cause of death was blood loss

•The fact that the Thames Valley Police in response to requests made pursuant to the Freedom of Information Act have confirmed that no fingerprints were found or recovered from any of the items found in the vicinity of the body, including the mobile phone, the blister packs of pills, the water bottle, the watch and the pruning knife. This was not discussed by the Hutton Inquiry, despite there having been no mention of gloves found on or near the body

•The failure of the Inquiry to hear evidence from witnesses that would properly have been called at an inquest, including one of the police detectives who attended the body, the last person reported by the media to have seen Dr Kelly on the day of this death, the forensic biologist who attended the scene for most of the day following discovery of the body, and a colleague who offered to provide evidence to Lord Hutton regarding Dr Kelly’s views on suicide and a lack of strength in his right hand and wrist.

•The failure of the Inquiry to hear evidence from experts in any clinical discipline relating to the cause of death, including no vascular surgeon who could provide an expert opinion regarding establishing cause of death by severing the ulnar artery.

•The disclosure of correspondence at the time of the Inquiry between the Department for Constitutional Affairs and H M Coroner, Nicholas Gardiner which refers to a preliminary cause of death “no longer represent[ing] the view of the Pathologist”, yet no reference is made in the transcripts of the Hutton Inquiry of any change of view by the Pathologist.

Frances Swaine commented that:

“The Attorney General has now received information that raises grave concerns as to the adequacy and sufficiency of the Hutton Inquiry. A suicide verdict requires indisputable evidence that a deceased physically took their own life and that the deceased had the intention to do so. In order to reach this verdict, a full and proper investigation of all the circumstances, including detailed consideration of medical reports and hearing of expert medical evidence, is required. This has not to date taken place in respect of the tragic death of Dr Kelly.”

Leigh Day & Co and our clients are aware of wide support from other eminent parties for the granting of the Attorney General’s fiat and a decision is eagerly awaited.